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In the High Court of Uttarakhand At WWW.LIVELAW.IN HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (Criminal) No.924 of 2021 Bharti ……....Petitioner Versus State of Uttarakhand and others …….Respondents Present:- Mr. Sanjay Kumar, Advocate for the petitioner. Mr. S.N. Babulkar, Advocate General with Ms. Manisha Rana Singh and Mr. Lalit Miglani, A.G.As. for the State/respondent nos.1, 2 and 3. Mr. Sandeep Tandon, Standing Counsel for the CBI/respondent no.4. JUDGMENT Hon’ble Ravindra Maithani, J. (Oral) Petitioner seeks transfer of investigation in the case arising out from FIR No. 261 of 2021, under Section 302 IPC, Police Station Haldwani, District Nainital from Police to Central Bureau of Investigation (for short, “CBI”). 2. Facts necessary to appreciate the controversy, briefly stated, are as hereunder:- The petitioner, on 03.03.2021, lodged a report under Sections 323, 504, 345 IPC and Section 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) against her husband Pravesh Kumar, which was lodged on 03.03.2021 at 11:55 PM at reporting Police Chowki Kundeshwari, Thana Kashipur. Pursuant to this FIR, on 04.03.2021, Pravesh Kumar was arrested and lodged at Police Station. An entry was made to this effect in GD Report No. 30, at reporting Police Chowki Kundeshwari, Thana Kashipur. The report reveals that Pravesh Kumar was hale and hearty and he had no injuries. Pravesh Kumar was remanded to judicial custody on WWW.LIVELAW.IN 2 05.03.2021 by the court of Additional District Judge/FTC/Special Judge, POCSO, Udham Singh Nagar. The remand sheet does not note any injury on his person. On 05.03.2021 at 04:29 PM, Pravesh Kumar was lodged at Sub-Jail Haldwani. Entry was made in Jail register at SL. No. 24. When he entered into Sub- Jail, Haldwani, he was also examined for COVID-19 and the report was “Negative”. On the same day, in the hospital of Sub-Jail, Haldwani, Pravesh Kumar was examined, but no injury was noted in his person. It was noted that he was “chronic alcoholic”. On 06.03.2021, in the hospital of Sub-Jail, Haldwani, in its OPD register at SL No. 164 an entry was made that Pravesh Kumar suddenly fell down on the ground and he was referred to Base Hospital, Haldwani. In the Base Hospital, Haldwani, Pravesh Kumar was taken, where in OPD Register at SL No. 29, it was recorded that he was brought dead. His post mortem was conducted. There were ten injuries on his person, which are as hereunder:- “1 Bluish red contusion present over the back of left (LT) lower limb extending from the back of mid thigh to upper 1/3 RD of left leg measuring 40 cm X 30 cm; lower end 30 cm above the healsand upper end 20 cm from the gluteal cleft. 2. Reddish blue pattern contusion horizontally placed present over the left upper 1/3 RD of left leg, 6 cm below the popletial fossa and 25 cm from the heals, measuring 12 cm X 9 cm and showing one of the parallel contusion measuring 0.4 cm in width of each of the linear haemorrhages measuring with a gap of 1.8 cm. 3. On dissection of injury no. 1, 2 200 ml of thick clotted blood is coming out and all muscles of back of thigh and upper end of muscles of leg are diffusely contused with blood clots throughout. 4. Bluish red contusion present over the back of right thigh extending from mid-thigh to lower thigh measuring 11cm x 15 cm. On dissection of underlying muscle are diffusely contused. 5. A reddish abrasion present over left gluteal area measuring 4cm x 1cm. 6. A bluish contusion is present over the mid 1/3 RD of back of trunk, present over midline 21 cm above the gluteal cleft, measuring 5cm x 1 cm. On dissection underlying muscle is contused. 7. A bluish contusion present over the front of right of lower abdomen, measuring 2.5 cm x 2 cm, 10 cm from midline and 87 cm from heal. On dissection subcutaneous tissue is contused. 8. A bluish contusion is present over the sole of right feet measuring 1.5 cm x 2 cm, 2 cm below the greater toe. 9. A bluish contusion is present over the sole of right feet measuring 1.2 cm x 1 cm, 3 cm below the middle toe. On dissection of injury no. 8, 9 blood is extravassated over the underlying muscle. WWW.LIVELAW.IN 3 10. A reddish brown scab abrasion present over the front of upper one third of left leg measuring 3.8 cm x 2.3 m.” 3. The petitioner was informed about the death of her husband. She noticed injuries on the person of her husband. The injuries were not explained to her. According to the petitioner, on 13.03.2021, a Rahul Shrivastav telephoned her and informed that on 06.03.2021 at about 02:00 PM Pravesh Kumar (hereinafter referred to as, “the deceased”) was quite upset in the Sub-Jail, Haldwani and was making a lot of noise. Therefore, he was beaten up by danda, patta, kicks and fists by Devendra Prasad Yadav, Head Constable, Kriti Nainwal, Devendra Rawat and Harish, all Guards of Sub-Jail, Haldwani. Due to this beating, the deceased fell down. Rahul Shrivastav had told that he was present in Sub-Jail, Haldwani on that date. Thereafter, the petitioner approached Police Station Haldwani to lodge the report, but it was not lodged. She approached Senior Superintendent of Police (for short, SSP), Nainital and other high ranking official, but FIR was not lodged. 4. Petitioner thereafter, moved an application to the Secretary, District Legal Services Authority (for short, “DLSA”), Nainital giving details as to how her husband died in judicial custody, who killed him and how the petitioner came to know about it. The Secretary, DLSA forwarded the application of the petitioner to SSP on 22.03.2021 for taking necessary action at the earliest. Instead of lodging an FIR, the SSP, Nainital got an inquiry conducted by Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since Magisterial inquiry is underway, any further action may be taken only after the perusal of the Magisterial inquiry. This communication was made on 05.04.2021. 5. The petitioner again approached the Magistrate of competent jurisdiction under Section 156 (3) of the Code of Criminal Procedure, 1973 (for short, “the Code”) and an order was passed. It is thereafter, FIR No. 261 of 2021, under Section 302 IPC at Police Station WWW.LIVELAW.IN 4 Haldwani has been lodged against four named Guards of Sub-Jail, Haldwani. The petitioner seeks transfer of the investigation to CBI. In para no. 11 of the writ petition, the petitioner discloses as to why she is not happy with the police investigation. It is as hereunder:- “11. That even otherwise also such types of incidents are increasing, the police department several times violates upon the right of the prisoners. The husband of the petitioner was beaten brutally by the prison guard. There is no one to look after the prisoner except the prison guard but in the instant case, protectors became the eaters. The petitioner knocked the every possible door to expose the secret behind the bar but with no result because the police department wanted to bury the case. And resultantly the petitioner constrained to knock the door of the court and on the direction of the court the FIR against the accused person could have been lodged but if the investigation of the aforesaid case would not be handed over to an independent investigation agency, the very purpose of fair and unprejudicated justice would be frustrated and this will amount to curtail the rights of the petitioner and will strengthen the hand of the culprits.” (emphasis supplied) 6. The Court sought certain documents from the learned State counsel which have been filed. The Court further sought response from the SSP, Nainital, which have also been received. It will be referred to at an appropriate place in this order now. 7. Heard learned counsel for the parties through video conferencing and perused the record. 8. Learned counsel for the petitioner would submit that FIR in the instant case was not lodged despite repeated requests made by the petitioner. She approached the SSP, Nainital twice but FIR was not lodged. Even the Secretary, DLSA approached SSP, Nainital, but FIR was not lodged. There is only one eye witness, who may be won over by the Police. The deceased died in the judicial custody. The kind of injuries which the deceased sustained reveals the extent of brutality in custody and injuries could not have been caused by felling on the ground or hitting on any surface. It is argued that the petitioner is apprehensive that police may not investigate the matter fairly. Hence, the investigation may be transferred to CBI. WWW.LIVELAW.IN 5 9. In this matter on 08.07.2021, the Court had sought the following documents from the learned State counsel:- “(i) General Diary entry of Chowki Kundeshwari and Police Station Kashipur of 03.03.2021, when the deceased was first lodged in the police chowki/police station or if on any other date, the deceased was entered in the police station, the relevant copy of General Diary. (ii) The copy of remand-sheet by which the deceased was remanded to judicial custody on the complaint of the petitioner. It may be obtained from the concerned court (for this purpose a copy of the order be sent to the court of A.C.J.M., Kashipur, which court, according to learned counsel for the petitioner, remanded the deceased .
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